Substance Abuse & CPS Cases, v. 2014

4 thAnnual Adjusting the Bar:
The Definitive Ad Litem Seminar in DFPS Cases

The Council on Alcohol & Drugs-Houston
303 Jackson Hill
Houston, Texas 77007
April 19-20, 2013

W. Leslie Shireman
wls@conlawfirm.com

Connolly & Shireman, L.L.P.
2211 Norfolk Street, Suite 737
Houston, Texas 77098
(713) 520-5757 Telephone
(713) 520-6644 Facsimile

www.connollyshireman.com

Substance Abuse and CPS Cases

Data collected between 2002 and 2007 indicate that 8.3 million children (11.9% of all children less than 18 years old) lived with at least one parent who was dependent on or abused alcohol or another substance within the last year. 1 Twenty-seven percent of children less than 5 years old lived with one or more parents who had a substance abuse or dependence problem in the last year. 2 A summary of research studies showed that substance abuse was present in between 66% and 75% of CPS cases in which a child was removed from the home. 3 If substance abuse is present, there is a high likelihood that mental illness is also present. Forty-five per cent of adults with a substance use disorder have a co-occurring mental health problem. 4

When a parent in a CPS case is alleged to have a substance use problem, the attorney representing the parent must exercise vigilance throughout the life of the case, beginning with the development of the Family Plan of Service and continuing through trial and, if necessary, appeal. The attorney for the children must also be well-informed regarding substance misuse, treatment, and recovery so that an informed recommendation can be made as to whether re-unification is appropriate. This paper will provide an overview of substance use disorders, assessment, and treatment, as well as steps that can be taken to ensure effective representation of a parent alleged to have a substance use problem.

I.Substance Use Disorder: Abuse or Neglect Per Se?

The use of mind-/mood-altering substances is deeply ingrained in American culture; one need only watch an hour of television to confirm this fact. Commercials for alcoholic beverages and prescription medications are common-place. The ingestion of these substances is certainly not a deviant behavior. However, ingestion can become problematic from a either clinical point of view, a legal point of view, or both.

An important caveat to keep in mind is that substance use by parent, standing alone, does not demonstrate that a child is being abused or neglected. The National Center on Substance Abuse and Child Welfare states that "It is important to note that the prevalence of the substance use does not yet tell us the nature and extent of the substance use disorders and, more important, how the parents' substance use might be affecting the risk or safety factors associated with the child abuse or neglect" (emphasis added). 5 While the presence of a substance use disorder alone does not constitute substantiated child neglect or abuse, knowledge about these disorders is necessary to accurately assess what risks the substance use disorder presents to the children, and such findings always represent an opportunity for some sort of treatment intervention. 6 With this fact in mind, the range of substance use will be discussed.

II.Continuum of Substance Use

The range of substance use lies upon a continuum, with total abstinence at one end and complete physiological dependence at the other. Moving from the total abstinence side, the next stop on the continuum is substance use which is defined as use that does not meet any clinical criteria for any type of substance use disorder, does not violate any laws, and does not create any problems in living from the use. This includes social drinking and the use of prescription drugs as prescribed.

The next stop is substance mis-use which can be defined as use that has the potential for the development of some problems in living but which do not rise to the level of clinical significance. Binge drinking is an example. Binge drinking is defined as consumption by a male of 5 or more drinks in any one sitting (the criteria for females is 3 drinks/episode). Binge drinking is associated with a higher risk of injury, sexual assault (either as a perpetrator or a victim) and legal problems. A binge drinker over the long term has a greater likelihood of developing health problems. Another example of substance mis-use is taking prescription drugs which have been described for someone else. Another example that some would use relates to the social use of marijuana. While all these behaviors have the potential for problems to develop, at this stage of the continuum they have not yet materialized and thus this level of substance use does not rise to the level of a diagnosable condition.

In late 2013 the American Psychiatric Association published the Diagnostic and Statistical Manual of Mental Disorders, 5 th Edition (DSM-5). DSM-5 significantly changed the nomenclature of substance use disorders, doing away with the "abuse" and "dependence" diagnoses found in both DSM- 3 and DSM-4. The DSM-5 preface explained this change as follows:

"The categories of substance abuse and substance abuse and substance dependence have been eliminated and replaced with an overarching new category of substance use disorders - with the specific substance used defining the specific disorders. 'Dependence' has been easily confused with the term 'addiction' when, in fact, the tolerance and withdrawal that previously defined dependence are actually very normal responses to prescribed medications that affect the central nervous system and do not necessarily indicated the presence of an addiction. By revising and clarifying these criteria in DSM-5, we hope to alleviate some of the widespread misunderstanding about these issues."

The DSM-5 does not use the word "addiction" as a diagnostic term is the classification because of "its uncertain definition and its potentially negative connotation." Instead, it uses the more neutral term "substance use disorder." Although the diagnostic labels have changed, many of the underlying criteria from the prior editions of the DSM have not changed. The criteria for a substance use disorder are:

  1. The substance is often taken in larger amounts or over longer period than was intended.
  2. There is a persistent desire or unsuccessful efforts to cut down or control the use.
  3. A great deal of time is spent in activities necessary to obtain the substance, use the substance, or recover from the effects of the substance use.
  4. Craving, or a strong desire to use the substance.
  5. Recurrent substance use resulting in a failure to fulfill major role obligations at work, school, or home.
  6. Continued substance use despite having persistent or recurrent social or interpersonal problems caused or exacerbated by the effects of the substance.
  7. Important social, occupational, or recreational activities are given up or reduced because of the substance use.
  8. Recurrent substance use in situations in which it is physically hazardous.
  9. Use of the substance is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the use of the substance.
  10. Tolerance, as defined by either of the following:
    1. A need for markedly increased amounts of the substance to achieve intoxication or the desired effect.
    2. A markedly diminished effect with continued use of the same amount of the substance.
  11. Withdrawal, as manifested by either of the following:
    1. The characteristic withdrawal set for the specific substance; or
    2. Use of a closely related substance to avoid or relieve withdrawal symptoms.

An individual must meet two or more of the above criteria within a 12-month period resulting in "clinically significant impairment or distress" to warrant a diagnosis. If the individual has the presence of 2-3 symptoms, the disorder is classified as "mild." The presence of 4-5 symptoms warrants a "moderate" classification. The presence of 6 or more symptoms results in a "severe" classification.

Another change in the DSM-5 from previous editions is in the "remission" specifiers (i.e., when a diagnosis is warranted but there are no current symptoms being demonstrated). Now, a person must have at least a three-month period in which no criteria are met to be considered in "early" remission (the DSM-4 required only a one-month period). "Sustained" remission still requires a 12-month period of no symptoms.

The substances for which one may be diagnoses with a substance use disorder are as follows:

  1. Alcohol;
  2. Caffeine;
  3. Cannabis;
  4. Hallucinogens (either phencyclidine or other hallucinogens);
  5. Inhalants;
  6. Opioids;
  7. Sedative, hypnotic, or anxiolytics;
  8. Stimulants (included amphetamine-type substances, cocaine, and other or unspecified stimulants);
  9. Tobacco; and
  10. Other (or unknown) substance, such as steroids.

It is important to realize that a severe substance use disorder is a brain disease which significantly impairs a person's cognitive capabilities by alterations in the levels of neurotransmitters, the chemical agents that allow neurons to communicate with each other. Because of this, afflicted individuals have problems with short-term memory and with abstract thinking. This results in repetitive, maladaptive behavior; the individual does not learn from recent mistakes, and is incapable of projecting into the future the potential negative consequences of his or her actions. These problems are compounded by the increased prevalence of mental health disorders in individuals with severe substance use disorders.

As stated above, the mere presence of a substance use disorder does not, in and of itself, constitute child abuse or neglect. However, substance mis-use, substance abuse, and substance dependence all create the potential for child endangerment to occur. A proper assessment to determine at exactly what level a parent may be mis-using substances is necessary to ensure appropriate services for a parent.

II.Assessment

Clients in substance use disorder treatment programs have certain rights, including the right to have "appropriate treatment in the least restrictive setting that meets [the client's] needs." 7 The Texas Department of Insurance has established admission and discharge criteria, as well as continued stay criteria, for the various levels of substance use disorder treatment: inpatient (hospital or 24-hour residential), partial hospitalization, outpatient treatment, and detoxification. 8 For example, one of the criteria for inpatient admission requires that "the patient's chemical substance use is excessive, and the patient has attempted to reduce or control it, but has been unable to do so (as long as chemical substances are available), and virtually all of the patient's daily activities revolved around obtaining, using, and or recuperating from the effects of chemical substances and the patient requires a secured environment to control the patient's access to chemical substances." 9 In order to determine what level of care is appropriate, the parent must be assessed by a mental health professional.

The goal of a substance abuse assessment is to obtain sufficient information regarding an individual's substance use patterns to accurately render an objective opinion based on behaviorally-stated evidence regarding the presence or absence of a DSM-5 substance use disorder, and to determine what treatment intervention is most likely to successfully address the problem.

The evaluator generally obtains information from the following sources:

  1. Counselor observation during interview;
  2. Client self-report;
  3. Screening instruments; and
  4. Collaborative information, such as arrest records, drug test results, reports from family/friends, medical records, information from caseworkers, etc.

Any assessment is only as good as the information upon which it is based. In some cases, the assessment may be based on incomplete information. The evaluator may not have had access to all relevant data sources. In other cases, the information was available but the evaluator failed to obtain it. This relates directly to the evaluator's skill in eliciting information from the client.

There are significant barriers to obtaining accurate information from an individual about that person's substance use. The first one is the universal human tendency to lack awareness of what is one's own actual behavior. There are three levels of behavioral reporting for any person:

  1. What that person says he does;
  2. What that person actually thinks he does; and
  3. What that person actually does.

These levels are almost always different regarding substance use. Thus, even when an individual is answering truthfully (second level of behavioral reporting), the information may not be accurate. Part of this problem relates to subjective perceptions. For example, when many alcoholics are asked how much alcohol is consumed in any one setting, they will reply "a couple of drinks." However, upon further inquiry it will be discovered that this answer can mean anywhere from 2-10 drinks.

Individuals involved with CPS present special challenges to an assessment because these individuals are likely to present with a higher level of defensiveness and will generally minimize any self-report of substance use because the parent fears disclosing the totality of the substance use will create problems in obtaining the return of the children.

A good evaluator will collect as much information as possible, then separate the relevant from the irrelevant. The filter that is used to sift the information is the diagnostic criteria as described in the DSM-5 criteria for a substance use disorder. Once the diagnosis is determined, the next step for the evaluator is to assess the individual's readiness to change.

III.Transtheoretical Model of Change

The Transtheoretical Model of Change ("TTM") has proven successful with a wide variety of simple and complex health behaviors, including smoking cessation, weight control, sun screen use, reduction of dietary fat, exercise acquisition, quitting cocaine, mammography screening, and condom use. 10 The TTM has found that individuals move through a series of five stages (precontemplation, contemplation, preparation, action, maintenance) in the adoption of healthy behaviors or cessation of unhealthy ones. 11 The TTM uses the stages of change to integrate cognitive and behavioral processes and principles of change, including 10 processes of change, pros and cons (i.e., the benefits and costs of changing), and self-efficacy (i.e., confidence in one's ability to change), all of which have demonstrated reliability and consistency in describing and predicting movement through the stages. These stages apply regardless of whether the individual is attempting to either adopt a healthy, adaptive behavior or stop an unhealthy, maladaptive behavior. 12 A brief description of each stage follows.

Pre-Contemplation is the stage in which an individual has no intent to change behavior in the near future, usually measured as the next 6 months. Precontemplators are often characterized as resistant or unmotivated and tend to avoid information, discussion, or thought with regard to the targeted health behavior.

Contemplation is the stage in which individuals openly state their intent to change within the next 6 months. However, this stated intent does not mean the individual is going to engage in any action. The person in this stage is more aware of the benefits of changing, but remains keenly aware of the costs. Contemplators are often seen as ambivalent to change or as procrastinators.

Preparation is the stage in which individuals intend to take steps to change, usually within the next month. Preparation is viewed as a transition rather than stable stage, with individuals intending progress to Action in the next 30 days .

Action is the stage in which an individual has made overt, perceptible lifestyle modifications for fewer than 6 months.

Maintenance is the stage in which the individual is working to prevent relapse and consolidate gains secured during Action. Maintainers are distinguishable from those in the Action stage in that they report the highest levels of self-efficacy and are less frequently tempted to relapse.

It should be noted that these phases do not follow a simple linear progression. Relapse is a common and expected occurrence in addiction recovery. Therefore, the stages are seen as a set of dynamically interacting components through which the individual will likely cycle a number of times before achieving sustained behavior change. This is known as the spiral model of the stages of change, which suggests that when an individual regresses to previous stages, he or she does not typically completely fall back to where they started. The individual advances through the stages, making progress and losing ground, learning from mistakes made over time, and using those gains to move forward.

V.Treatment Options

In determining what treatment intervention is most appropriate, the most important factors to recognize is that: (1) not all substance use disorders are alike, (2) people have different levels of motivation to change the behavior, and (3) proper matching of the person's substance use disorder and motivation to change with the correct therapeutic intervention yields a higher likelihood of successful behavioral change. The best course of action is to let the evaluator determine what the intervention should be for someone with an addictive disorder. Not everyone needs to go to a residential treatment program.

Placement levels can encompass addiction education, brief intervention individual sessions (usually 1-6 in number), outpatient treatment (several levels), residential treatment (either intensive or supportive), and detoxification. Self-help groups such as Alcoholics Anonymous and Narcotics Anonymous can be an inexpensive option to treatment for some individuals; however, 12-Step groups do not work for everyone. Referral to an inappropriate level of care may result in the person leaving treatment or never reporting, with the result that the maladaptive behavior will most likely continue.

VI.Representing Parents

A.The Obvious Substance Use Problem

For many parents in CPS cases, the parent's problem with substance use is beyond dispute. In such instances, the adage (reportedly used by Abraham Lincoln in relation to his marriage) "if you make a bad bargain, hug it all the tighter" applies. In other words, turn the substance abuse issue into a positive by doing everything possible to encourage the client to address the problem. While representing parents with substance abuse problems is challenging, there are some strategies that can be employed that increase the likelihood that the parent will be successful in maintaining a relationship with his or her children. Here are five such strategies:

1.Its a Brain Disease

In representing a parent with a substance use disorder, perhaps the most important point to remember is that the parent has a brain disease that significantly impairs cognitive functioning. This requires the attorney to make sure her client understands exactly what is happening in the case, what the expectations for the client's participation are, and what actions the client is required to take. While the client may appear to be absorbing the information being provided by either the court, the caseworker, or you, check on this by having the client repeat back to you the client's understanding. This is especially important after a hearing or after a Permanency Conference. Employing this practice will allow you to correct misconceptions as soon as possible.

2.Don't Get Hung Up on Labels

Do not make a big deal if your client resists identifying himself as an "addict" or "alcoholic". Such self-identification has no correlation with successful treatment outcomes. 13 That does not mean that the client need not recognize his substance use as problematic. However, the nature of the client's awareness of the problem can vary widely from one person to the next. For example, the parent may couch "the problem" in terms of CPS involvement: "My baby tested positive for drugs and CPS is in my life." It is fairly easy to get a parent to recognize her substance use has created some type of problem for the parent, even if she is not willing to acknowledge she is an addict. By taking a more flexible, pragmatic approach, you increase the likelihood that the parent will actually access services.

3.Strike While the Iron is Hot

The removal of a child is a traumatic event for a parent. This crisis can be used constructively to enhance the client's motivation to deal with the problems resulting in the removal. Encourage the client to access treatment services as soon as possible. In cases where the substance abuse issue is glaringly obvious, you can refer the client directly to treatment without waiting for the Agency to issue service authorization. The quicker a parent can get involved in structured activities promoting sobriety, the more likely the parent will have a successful outcome. For information on state-funded treatment resources in Harris County, visit the State Department of Health Services website at www.dshs.state.tx.us/Substance-Abuse/.

4.Provide Accountability

Substance abusers lack structure in their life. The recovery process includes creating a structure which enhances sobriety. The attorney can assist with this by requiring the client to check in on a weekly basis. This can be done by phone call. Instruct the client to call every week on a specific day on or before a specific time to provide a progress report: how is treatment going, what services on the service plan have been completed or are in process, how did the visits with the children go, etc. If the client fails to make the weekly call-in, follow up as soon as possible to determine why this happened. The issue may be cognitive, in that the client simply forgot (more believable in the beginning of recovery than later), it might be due to a scheduling conflict, or it may be simple non-compliance. Regardless, by having these regular check-ins the attorney is more likely to be able to address problems early on.

5.Use the Service Plan

A good practice is to constantly discuss with the client progress towards the Family Service Plan ("FSP"). As stated above, have the client report progress on the FSP during the weekly check-in. By repeated reference to the FSP, the attorney reinforces in the client awareness of the tasks necessary to successfully complete the plan. However, it is crucially important that the FSP not be created in such a way that the client is set up for failure (please see discussion immediately below).

B.The Service Plan

The Family Plan of Service is an extremely important document. If the proposed plan is adopted by the Court, the parent's failure to complete the plan can be used as a ground for the termination of parental rights. 14 The 14th Court of Appeals has held that a parent who fails to complete a service plan may have his rights terminated even if that parent was not the parent whose act or omission caused the child to be removed. 15 Other courts have held that partial compliance with the service or excuses as to why the parent could not complete the service plan are insufficient to avoid termination under this ground. 16 Accordingly, the contents of the service plan can be of crucial importance to the parent if the Agency seeks termination.

1.Don't Allow a Specific Level of Treatment to Be Indicated in Service Plan

It is fairly common for service plans to include a provision that a parent obtain a substance abuse assessment. As stated above, this is appropriate. However, it is also common that, in addition to the requirement that the parent obtain an assessment, the service plan also requires the parent to complete a specific level of treatment (usually inpatient/residential) as well as attend 12-Step groups. This is putting the cart before the horse. The whole purpose of an assessment is to determine the extent of the parent's substance use problem as well as what is the most appropriate level of care. If the Agency already has decided that the parent needs to attend a specific treatment modality, why have an assessment?

Further, as stated above, treatment providers must adhere to state-mandated criteria for admission to their programs. One of the criteria is often the presence of an active DSM-5 substance use diagnosis, and only a licensed mental health professional can make such a diagnosis. If the caseworker is not such a mental health professional (I have yet to encounter one who is) and no assessment by such a professional has been completed, then the caseworker is totally unqualified to require a parent to complete a specific treatment level.

It is also important to object to the requirement that a parent attend 12-Step groups. While 12-Step groups can be a very important part of a parent's recovery process, not everyone benefits from such programming. It is much preferable to let the professional conducting the assessment or the treatment program for the parent make such a recommendation. (This doesn't mean counsel for the parent should not be encouraging the client to attend 12 Step programming. It is a great resource: there are no fees and meetings occur all over the county at all hours of the day and night. However, it should not be made a requirement of the service plan.)

2.Drug Testing Requirements

This is a common requirement in service plans. The provision usually contains a statement that a diluted specimen will be considered a positive result. This provision should be objected to and removed from the plan because it is directly contrary to established procedures.

Standards for laboratories conducting drug testing are created by the Substance Abuse and Mental Health Services Administration's (SAMHSA) Division of Workplace Programs. 17 The federal Office of Drug and Alcohol Policy and Compliance (ODAPC) (a component of the Department of Transportation) uses these standards in developing rules for workplace drug testing, including the consequences for certain drug testing results. 18 A diluted specimen (as determined by SAMHSA) is one which is below minimum concentrate levels of creatine and specific gravity. A diluted specimen may be the result of a medical condition, an increased ingestion of fluid, or the addition of liquid to the collected specimen. There is no way to determine which factor caused the specimen to be dilute, and as such a diluted specimen cannot automatically be considered as an attempt to adulterate or substitute a specimen. 19 (See below for more issues relating to drug testing.)

C.Discovery

In order to challenge a drug test result at trial, discovery is essential. Thorough discovery can reveal various problems with the laboratory including but not limited to chain of custody issues, mishandling or mix ups of specimens, false positives, systematic bias in results, and/or problems with lab personnel Any one of these may be enough to discredit an unfavorable test result.

When issuing discovery, it is important to request all raw data available regarding the testing performed. When making a specific discovery request for drug testing data, include the following:

(a)the standard operating procedure for the analysis used;

(b)quality control data for the lab;

(c)validation studies of the procedure for instrument used;

(d)results of all samples analyzed on the day the testing was done;

(e)the training and certifications of the operators who performed the analysis; and

(f)the margin of error for the analysis (with documentation).

For the instrument used, request the following:

(a)the type of machine used and the model number;

(b)the instruction manual;

(c)calibration data (include the week before and the week after the analysis on your

specific test results); and

(d)inspection reports and maintenance records for the machine.

For a GC/MS machine, also request the background check of the instrument, total ion chromatograms of the background, standard and unknown, and full scan or SIM spectra of the background, standard and unknown.

Do not blindly assume that protective procedures are in place to ensure reliability of these tests. At many points in the testing process opportunity exists for mechanical and/or human error. As such, drug test results should not be taken at face value but should be investigated and challenged if some question exists. For the sponsoring witness who will prove up the results (who must be an expert), request documentation on the individual's qualifications including education, certification, positions held, organizations, publications, and courtroom experience.

In your discovery request, you can ask that a litigation packet be provided by the lab. This is much more than just the one bare page typically offered by the Agency in a trial. The litigation packet will typically include:

(a)a copy of the Federal Drug Testing Custody and Control Form and/or associated paperwork regarding the specimen collection;

(b)a copy of the electronic result report of the test;

(c)a description of the Initial Drug and Specimen Validity Testing Procedures;

(d)the Initial Test Data (which should include specimen chain of custody, screening aliquot chain of custody, screening batch chain of custody, a quality control summary report for the batch, a calibration report, and screening data);

(e)a description of the Confirmation Drug and/or Specimen Validity Testing Procedures;

(f)confirmation data for the batch (which should include a GC/MS Data Package Summary, confirmation aliquot chain of custody, prep batch worksheet, a sequence table and documents showing autotune, calibration data, low control, cutoff control, negative control, oxidation control, chromatography for the specimen, and re-injection cutoff control).

This information tracks the specimen through every step of the testing process. If you have your own expert, this can be provided to your experts for analysis and to determine if there are any problems in the testing procedure. At a minimum assist in your cross-examination of the Agency's sponsoring witness at trial.

D.Evidentiary Issues

There are two issues that can be crucial in prevailing in a case in which parental substance abuse is an issue. The first relates to the evidence the Agency must produce to substantiate the parental drug use, which generally consists of the information in the caseworker's affidavit. This information must be objected to. The other relates to drug testing results. Too often these test results are admitted without objection and without proper authentication. Making the proper objection to these tests can be the difference between winning and losing your case, both at trial and on appeal.

1.Keep Out the Caseworker Affidavit in Whatever Form It Is In

At final trial it is common for the Agency to introduce a variety of pleadings and reports into evidence, usually including the Agency's petition (including the caseworker's affidavit), the Permanency Progress Reports, the Family Service Plan, and the 4C's report. The Agency also frequently requests that the Court take judicial notice of its file. Objections should be made against all of these documents, because they frequently contain the bulk of the evidence relied up by appellate courts in upholding parental termination. 20 This is especially true as it relates to substance abuse issues.

The Agency's tactic in requesting the Court take judicial notice of its file is improper. A judicially noticed fact must be one not subject to reasonable dispute; 21 typically, the presence or absence of a parent's substance use disorder is subject to significant dispute. In the event that the Agency requests that the Court take judicial notice of the file, objection should be made.

The affidavit attached to the Petition, as well as any pleading filed by the Agency, is not competent evidence. The affidavit is hearsay; it is an out of court statement made by the caseworker that is being offered for the truth of its contents. Beyond that, the affidavit is replete with double and triple hearsay. Further, the factual allegations in a pleading are not competent evidence. 22

The Permanency Progress Report, the Family Plan of Service, and the 4C's report usually contain the caseworker affidavit or some portion of it. Objection should be made against all these documents. The Permanency Progress Report is complete hearsay. The Court may take judicial notice of the fact that the Agency has filed a Permanency Progress Report, but should not take judicial notice of the factual allegations contained in the document. That portion of the Family Service Plan and the 4C's report that contain the allegations from the affidavit should also be objected to on hearsay grounds. While this may not yield positive results at trial, on appeal this can be crucial in a legal or factual sufficiency challenge.

2.Don't Roll Over on Drug Testing Results

The Agency typically offers positive urine drug test results of the parents under a business records affidavit. While the business record affidavit provides an exception to the hearsay rule, this does not mean that the report is automatically admissible. The Texarkana Court of Appeals has held that drug tests are not admissible over objection when nothing is proffered beyond "the bare results themselves." 23 The sponsoring witness authenticating the drug test results must have personal knowledge of how the tests were conducted, what devices were used in conducting the test, whether the tests were properly conducted or maintained, whether the collector was competent to obtain the specimen, and whether the tests used to determine the results were the standard tests for the substance. "We believe that admitting drug tests in a termination of parental rights case with no information as to the qualifications of the person or equipment used, the method of administering the test, and whether the test was the standard one for the particular substance indicates a lack of trustworthiness of the tests and that admission of such evidence is an abuse of discretion." 24

Positive drug tests taken from hair samples are even more problematic. While there are specific rules and regulations pertaining to the collection, analysis, and interpretation of urine drug tests (see above), no such rules and regulations exist as to hair testing. SAMHSA does not include hair testing in its protocols for workplace drug testing because it is not considered sufficiently reliable. 25 As such, drug test results from hair should be challenged.

3.Examination of an Expert Witness

With both hair and urine drug tests, the sponsoring witness must be an expert. A sponsoring witness who is an expert in collecting urine and hair samples and sending the specimens does not mean the witness is an expert in interpreting the tests and as such cannot provide the authentication necessary to make the tests admissible because "the actual results of the scientific tests are the relevant evidence of drug use." 26 The Dallas Court of Appeals held that a person who owned a company that conducted DNA and drug testing and who had the highest certification for administering and collecting specimens was not qualified to testify as to the interpretation of the results.

The sponsoring witness should offer evidence of her qualifications to interpret drug test results, including educational background, experience in the field, relevant positions held, certifications, membership in professional organizations, publications in the field, and courtroom experience. In order to establish reliability of the testing, the expert should be familiar with the pharmacology of drugs (including legal and illegal drugs as well as alcohol), the methods of measures used in screening (including the units), screening confirmation and why confirmation is necessary. The expert should be able to explain the cut off levels in both the initial test and the confirmation. The expert should also be able describe all chain of custody procedures and security measures taken by the lab.

In terms of the actual drug testing results at issue, the expert should be able to testify regarding the litigation packet in its entirety and describe the quality control program. Finally, and only if they are qualified to do so, the expert should testify to the meaning of a positive result, what this indicates about the nature and frequency of the alleged use of the drug, and whether these substances can normally be found in humans.

Under the guidelines established by SAMHSA and DOT, the person who interprets the drug test results is known as the Medical Review Officer, or MRO. The MRO is a licensed physician with knowledge and experience in substance abuse disorders. The MRO "serve as independent, impartial gatekeepers to the accuracy and integrity of the DOT drug testing program...as a safeguard to quality and accuracy, the MRO reviews each test and rules out any other legitimate medical explanation before verifying the results as positive, adulterated, or substituted." 27 Accordingly, under S.E.W. (see footnote 26) it can be argued that the only person competent to interpret drug testing results is the MRO. This is especially true when the sponsoring witness is offering an opinion as to the severity of the substance use by the parent based solely on the drug test results.

A forensic toxicologist is also qualified to testify regarding drug testing. If you have the resources, such an individual can review the discovery obtained and identify problems with the testing procedure. A directory for certified forensic toxicologists in our area is available on the website for the American Board of Forensic Toxicology. 28 If these resources are unavailable to you, the ODAPC publication What Employees Need to Know About DOT Drug & Alcohol Testing (see footnote 18) contains a very detailed description of the entire DOT testing procedure, from preparing the chain of custody document, the steps the collector must take to ensure the integrity of the specimen, the collection of the specimen, and the transmission of the specimen to the laboratory. The information in this handbook provides an excellent blueprint for challenging the integrity of the sample.

VII.Conclusion

Representing parents when there are allegations of substance abuse is a difficult challenge. However, many parents do recover from substance abuse disorders. It is always difficult to know if a substance abuser is indeed actively working a recovery program. The best way to tell if someone is actually sober is not what the parent can recite to his attorney or the court. The most accurate barometer of recovery is the creation of a "normal" adult lifestyle - having a job, going to work, having a place to live, keeping appointments, paying on obligations. If you observe these behaviors in your client, you can be fairly confident that recovery is indeed occurring. If your client does not create a structured lifestyle, then sobriety is not occurring even if the client is remaining abstinent. The client may require some counseling to enhance motivation to increase willingness to change. And regardless of whether the parent is in recovery or not, the Agency should be held to their high burden of clear and convincing evidence to prove that the parent's substance use consists of such a danger that parental rights be terminated.


1Substance Abuse and Mental Health Services Administration, Office of Applied Studies. (April 16, 2009). The NSDUH Report: Children Living with Substance-Dependent or Substance-Abusing Parents: 2002 to 2007. Rockville, MD.

2Id.

3National Center on Substance Abuse and Child Welfare. Fact Sheet 3: Research Studies on the Prevalence of Substance Use Disorders in the Child Welfare Population ("Prevalence Factsheet"). Available online at www.ncsacw.samhsa.gov/files/Research_Studies_Prevalence_Factsheets.pdf.

4 Substance Abuse and Mental Health Services Administration, Results from the 2010 National Survey on Drug Use and Health: Mental Health Findings, NSDUH Series H-42, HHS Pub. No. (SMA) 11-4667. Rockville MD: Substance Abuse and Mental Health Services Administration, 2012.

5"Prevalence Factsheet". at p. B-17.

6Id.

725 Tex. Admin. Code § 448.701 (2006) (Dep't of State Health Servs., Client Rights).

828 Tex. Admin. Code §3.801 et. seq. (1999) (Dep't of Insurance, Standards for Reasonable Cost Control and Utilization Review for Chemical Dependency Programs).

9Id., §3.8011. For detailed descriptions of admission and discharge criteria for all levels of care, see 28 Tex. Admin. Code Part 1, Chapter 3, Subchapter HH.

10J. O. Prochaska et al., Stages of Change and Decisional Balance for 12 Problem Behaviors, Health Psychology, 13, 39-46 (1994).

11Id.

12J.O. Prochaska & W.F. Velicer, W. F., The Transtheoretical Model of Health Behavior Change, American Journal of Health Promotion, 12, 38-48 (1997).

13 W. R. Miller & S. Rollnick, What is motivational interviewing? 23 Behavioural and Cognitive Psychotherapy 325 (1995); see also For a complete discussion of motivational interviewing concepts and strategies, see William R. Miller & Stephen Rollnick, Motivational Interviewing, Second Edition: Preparing People for Change (2002 Guilford Press).

14Tex. Fam. Code §161.001(1)(O).

15 In re S.N., 287 S.W.3d 183, 188 (Tex. App.-Houston [14 th Dist.] 2009, no pet.)

16 In re J.S., 291 S.W.3d 60, 67 (Tex. App.-Eastland 2009, no pet.); In re C.R., 263 S.W.3d 368, 373 (Tex. App.-Dallas 2008, no pet.)

17For a comprehensive of rules and statues relating to drug testing, see www.workplace.samhsa.gov/Dtesting.html

18The ODAPC publishes, implements, and provides authoritative interpretations of workplace drug testing rules which are found in 49 C.F.R. pt. 40. See www.dot.gov/odapc. A wealth of information regarding drug testing rules can be found in an ODAPC publication What Employees Need to Know About DOT Drug & Alcohol Testing, available on-line at www.dot.gov/odapc/employee-handbook-english.

19 See Procedures for Transportation Workplace Drug and Alcohol Testing Programs, 68 Fed. Reg. 31624 (May 28, 2003)(to be codified at 49 C.F.R. pt. 40); 69 Fed. Reg. 64,865 (November 9, 2004).

20See S.N., 287 S.W.3d at 190 (FN2).

21Tex. R. Evid. 201.

22 Tschirhart v. Tschirhart, 876 S.W.2d 507, 508 (Tex. App.-Austin 1994, no writ)

23 In re K.C.P., 142 S.W.3d 574, 579 (Tex. App.-Texarkana 2004, no pet.)

24 Id. at 580.

25Mandatory guidelines for Federal Workplace Drug Testing Programs, 73 Fed. Reg. (Nov. 25, 2008).

26 In re S.E.W., 168 S.W.3d 875, 883 (Tex. App.-Dallas 2005, no. pet.).

27 What Employees Need to Know About DOT Drug & Alcohol Testing, available on-line at www.dot.gov/odapc/documents/EmployeeHandbookOctober2010.pdf

28 www.abft.org